The opinion of the court was delivered by: KNIGHT
Edmund P. Van De Water died on May 18, 1933. The defendant issued a certificate of insurance to him on October 31, 1923. The application for insurance designated plaintiff as the beneficiary. Concededly death was caused by injuries intentionally inflicted in the course of a robbery or burglary.
At the time when the certificate of insurance was issued, the constitution of defendant contained this provision: "This Order shall not be liable to any person for any benefit for any death, disability or loss of time resulting from * * * murder, * * * injuries (fatal or otherwise) intentionally inflicted by others, (except where such injuries are inflicted for the sole purpose of burglary or robbery or by an insane person, the intent to commit burglary or robbery to be established by the claimant and the insanity to be established by a court having competent jurisdiction), or from voluntary exposure to unnecessary danger or to over-exertion (unless in an effort to save human life) * * *." Article IV, section 7.
The plaintiff contends that she is entitled to recover the death benefit in the amount of $6,300 by virtue of the provisions of that part of the constitution which has heretofore been quoted.
Prior to the death of insured, the constitution of defendant was amended, and at the time of death of insured it provided: "Nor shall the Order be liable to any person for any benefit for death, disability, loss of time, or any of the losses specified in Items 3 to 10 of Sections 4 and 5 of this Article resulting from * * * murder or disappearance, injuries intentionally inflicted by others resulting in death, or from voluntary exposure to unnecessary danger or to over-exertion (unless in an effort to save human life)." Article IV, section 9.
It will be noted that the amendment eliminated from the provision of the constitution in force when this policy was issued these words: "except where such injuries are inflicted for the sole purpose of burglary or robbery, or by an insane person, the intent to commit burglary or robbery to be established by the claimant and the insanity to be established by a court having competent jurisdiction."
It is admitted that the insured died as a result of injuries intentionally inflicted upon him by another for the sole purpose of burglary or robbery. It is the defendant's claim that the test of defendant's liability is measured by the provision of the constitution in force at the time of the death of insured, and that by reason of the fact that this amendment provides that the defendant shall not be liable for any benefit for death resulting from murder or injuries intentionally inflicted by others resulting in death, defendant is not liable in any amount on the certificate of insurance.
The question to be decided is whether the constitution and by-laws in force when the certificate of insurance was issued or the constitution and by-laws in force at the time of the death of deceased are controlling. At the outset it is important to distinguish between certificates of insurance issued by a fracternal benefit association, such as is this defendant, and certificates of insurance issued by the ordinary life or mutual insurance company. The original purpose of the organization of the Order of United Commercial Travelers of America was fraternal, social, and philanthropic. In this, as in similar organizations, as a natural outgrowth, there came a plan of indemnity or insurance for its members. The objects of this organization, as stated in its constitution in article I, section 2, among others, are: "To unite fraternally all Commercial Travelers * * *. Second. To give all moral and material aid in its power to its members * * *; Third. To establish funds to indemnify its members for disability or death resulting from accidental means. * * * Fifth. To elevate the moral and social standing of its members. * * * Sixth. To establish a Widows' and Orphans' Reserve Fund." It organized on the form of a supreme council and subordinate council. Its membership is limited in certain respects, and each of its members stands upon an equal footing in the subordinate councils. Each member has the right to vote; each on an equality with another. Dues are required to be paid, and provision is made for the application of such toward the expenses and maintenance of the order and relief and other expenditures. Provision is mde for the raising of funds for the several purposes stated. Provision is made for payments for the support of the lodge by assessments on each insured member in good standing and for increase in case of necessity of such assessments. A member without certain disqualification is entitled to insurance provided in the constitution. Certain classifications of insured members are provided. Insured in this case came within the so-called Class A group as distinguished from Class B group. Class A group included those who had not lost either hand, either foot, or the sight of either eye, were not deaf, subject to fits, or mentally infirm, who had no wound, injury, or disease rendering them especially liable to accident. Class B group includes all others. Article IV, section 4, of the constitution, at all times in question fixed the maximum benefits under Class A insurance certificates as $6,300 in case of death. If entitled to recover, plaintiff is entitled to recover that amount.
The application for insurance herein, signed by Edmund P. Van De Water dated October 31, 1923, among other provisions, contains this: "I hereby agree to accept the Certificates of Membership and Insurance issued upon this application, subject to all the provisions, conditions, and limitations of the Constitution, laws, rules and regulations of said Order as they now exist or as they may hereafter be added to, revised or amended."
The certificate of insurance issued to Edmund P. Van De Water provides that: "Edmund P. Van De Water, a member of The Order of United Commercial Trvelers of America, in consideration of the statements contained in his application for insurance and the application fee paid by him, is hereby accepted as an Insured Member of said Order under 'Class A' * * * and is entitled to all the rights and benefits which may be provided for such 'Class A' Insured Members in and by the Constitution of said Order in force and effect at the time any accident occurs subsequent to said time and date." And: "This certificate, the Constitution, By-Laws and Articles of Incorporation of said Order, together with the application for insurance signed by said Insured Member, shall constitute the contract between said Order and said Insured Member and shall govern the payment benefits; and any changes, additions or amendments to said Constitution, By-Laws or Articles of Incorporation, hereafter duly made, shall bind said Order and said Insured Member and his beneficiary or beneficiaries, and shall govern and control the contract in all respects."
The constitution provides that members shall be considered in good standing "only so long as they pay fees, fines, costs, dues and assessments charged * * * support the principles of the Order and faithfully observe its Constitution, By-Laws, Rules and Edicts * * * as such Constitution, By-Laws, Rules and Edicts now exist, or as they may hereafter be added to, revised or amended." Article II, section 4. The constitution also provides the method by which the constitution and by-laws or articles of incorporation may be amended. Article XIV, sections 1 and 2. No question is raised hre as regards the regularity of the proceedings by which the amendment in question was adopted. It presumably was adopted by the vote of the several councils in one of which the insured had the right to vote as a member.
It is my opinion that the authorities support the conclusion that the rights of the parties are to be determined by the terms of the constitution and by-laws in force and in effect on the date of the death of the insured. It is my conclusion that the defendant had the right to make such changes in its constitution and by-laws that may be said fairly to be reasonable and that the amendment in question was a reasonable change.
The certificate of insurance is an agreement between the insurer and the insured. It specifically provides that any changes, additions, or amendments to the constitution thereafter made would bind both insurer and insured. This was a condition of the agreement for insurance. The language could hardly be more specific or definite. If the terms of the agreement have any force, they must be construed to give the insurer the right to make reasonable changes. This is the specific purpose of the limitation in the policy. No vested right is invaded. Supreme Lodge of Fracternal Union of America v. Light (C.C.A.) 195 F. 903; Order of United Commercial Travelers of America v. Smith (C.C.A.) 192 F. 102; Tisch v. Protected Home Circle, 72 Ohio St. 233, 74 N.E. 188; United Order of Foresters v. Miller, 178 Wis. 299, 190 N.W. 197, 29 A.L.R. 1526; and Zerbel v. Supreme Assembly, 199 Wis. 298, 226 N.W. 288, present cases in which it was held that the provisions of the constitution in force at the time of insured's death were controlling.
In Supreme Lodge of Fraternal Union of America v. Light, supra, an amendment prohibited members from engaging in the sale of malt liquors and provided that the members so engaging forfeited all rights to indemnity. The opinion cites many cases supporting the rule that insured is bound by any reasonable change. In Order of United Commercial Travelers of America v. Smith, supra, the constitution was amended to exclude from indemnity for any loss in cases where there were no visible marks on the bodies of the dead or injured. This case is quite directly in point. In Tisch v. Protected Home Circle, supra, a by-law was enacted subsequent to the issuance of the policy. It provided that the policy should be void if insured died by suicide or certain other causes. Insured committed suicide Payment of the death benefit was refused. The court held that since the application contained the agreement of the insured to conform to "all laws, rules and usages of the Order then or thereafter in force" and that such compliance was an express condition ...